Pengelly-Emtage v Lee

[2016] ACTCA 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Pengelly-Emtage v Lee

Citation:

[2016] ACTCA 44

Hearing Date:

4 November 2014

DecisionDate:

8 September 2016

Before:

Penfold, Burns and Ross JJ

Decision:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs.

Catchwords:

DAMAGES – General Principles – appeal by plaintiff from award of damages for negligence arising from motor vehicle accident – whether primary judge erred in declining to award damages for loss of earning capacity – whether primary judge gave adequate reasons in choosing between contradictory expert opinions –  adverse credibility findings in relation to evidence of appellant and his mother – onus of establishing injury productive of economic loss – appeal dismissed.

Cases Cited:

O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132

Parties:

Dean Hilary Pengelly-Emtage (Appellant)

Trenton Charles Lee (Respondent)

Representation:

Counsel

Mr A Muller (Appellant)

Mr W Fitzsimmons (Respondent)

Solicitors

Maliganis Edwards Johnson (Appellant)

DLA Piper Australia (Respondent)

File Number:

ACTCA 40 of 2013

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Sidis AJ

Date of Decision:         12 June 2013

Case Title:  Dean Hilary Pengelly-Emtage v Trenton Charles Lee

Citation: [2013] ACTSC 76

THE COURT:

Introduction

1. The appellant had been a passenger in his mother’s car in August 2008 when it collided with a car driven by the respondent, who had failed to give way at the intersection of the Monaro Highway and Mugga Lane in the ACT. The respondent had admitted liability for the accident, but disputed the appellant’s claims of injury, disability, loss and damage arising from it.

1. On 12 June 2013, Sidis AJ awarded the appellant damages of $60,949, and costs, against the respondent.

Background

1. Her Honour summarised the background to the case as follows:

6.The plaintiff was 16, almost 17 years old at the time of the accident and 21 years old at the time of the hearing.

7.He was born prematurely in September 1991. At the age of two years he was diagnosed with Kawasaki disease with potential consequences to his cardiac health, although none were detected to the date of the hearing. He was diagnosed with Irlen's syndrome, a condition that caused reading problems through the inability to recognise characters printed in black and white on a page. The plaintiff obtained specially coloured spectacles to assist in correcting this condition.

8.The plaintiff left school early in 2005 at the age of 13, or Year 8 of his high school education. Thereafter he received no formal education. For the balance of his education, Mrs Pengelly-Emtage, a primary school teacher, left exercises for him to complete during the day and he watched historical or documentary DVDs.

9.In September 2007, at the age of 16, the plaintiff began work on a casual basis in a child care centre that Mrs Pengelly-Emtage established. The centre provided before and after school care for primary school children from kindergarten to year 6. From March 2008 the plaintiff was paid on a full time basis. He…